1

‘Race’, Ethnicity, and Racism in Europe
Since the mid-1980s, the issue of racism has gradually assumed greater prom-
inence within European Union law and policy discourse. Nevertheless, the
meaning of core concepts has always been hedged with ambivalence. This is
excellently demonstrated within Directive 2000/43. This forbids discrimination
on grounds of ‘racial or ethnic origin’,
1
but the preamble declares:
The European Union rejects theories which attempt to determine the existence of
separate human races. The use of the term ‘racial origin’ in this Directive does not imply
an acceptance of such theories.
2
At the same time, the European Commission commonly refers to this Dir-
ective as the ‘Racial Equality’ Directive. This book aims to identify the extent
to which the objectives of combating racism and promoting equality have
been integrated across various areas of EU law and policy. To this end, it is
essential to clarify at the outset the meaning of ‘racism’. Legal and policy
documents often use this term in a rather loose fashion as if its meaning was
self-evident and uncontested. In contrast, this chapter will illustrate the variety
of issues potentially falling under the broad category of racism. From a
European perspective, it is particularly important to consider the historic and
geographic context in which racism is manifested.
3
Expressions of racism are
not necessarily consistent across the (enlarged) EU. The chapter begins by
considering theoretical critiques of ‘race’, ethnic origin, and the concept of
racism. It proceeds to consider how these terms have been used within legal
instruments. The final sections examine the principal groups vulnerable to racism
within the EU.
1
Art 1, Council Directive (EC) 2000/43 implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin [2000] OJ L180/22. This Directive prohibits dis-
crimination on grounds of racial or ethnic origin in employment, vocational training, education,
social protection, social advantages, and access to goods and services, including housing.
2
Recital 6.
3
E Howard, ‘Race and racism—why does European law have difficulties with definitions?’
(2008) 24 IJCLLIR 5, 11.
A. ‘Race’ and Racism
The origins of the term ‘racism’ lie in a critique of scientific theories on ‘race’.
4
Such theories came to prominence during the nineteenth century and sought to
categorize the human population into a number of biologically distinct ‘races’.
These were often identified by reference to physical characteristics, such as skin
colour and facial appearance. Crucially, it was purported that these racial cat-
egories were aligned with different levels of intellectual capacity, leading to the
view that some ‘races’ were superior to others.
5
The supposed objectivity of such
scientific analysis originally provided a veneer of legitimacy for imperialism and
the slave trade.
6
It also provided an ideological underpinning for the emergence
of race laws in the 1930s and the subsequent Holocaust.
7
A critique of the concept of biologically distinguishable human ‘races’ can be
traced back to the 1920s and 1930s.
8
This accelerated in the post-war period
under the auspices of several inquiries conducted by UNESCO. These concluded
that, in fact, there was no scientific basis for the proposition that the human
population was composed of a number of distinct ‘races’, as opposed to a
spectrum of human diversity. The 1978 Declaration on Race and Racial
Prejudice summarizes this viewpoint:
1. All human beings belong to a single species and are descended from a common
stock. . . .
5. The differences between the achievements of the different peoples are entirely
attributable to geographic, historical, political, economic, social and cultural factors. Such
differences can in no case serve as a pretext for any rank-ordered classification of nations
or peoples.
9
This international consensus on the scientific falsity of ‘race’ persists, although there
is some return to this debate in the context of contemporary genetic profiling.
10
Within academic literature, the artificial nature of the concept is often indicated
by placing ‘race’ within inverted commas. The corollary of rejecting ‘race’ as an
objective criterion is the recognition that perceptions of ‘race’ are social con-
structions. As such, perceptions of ‘race’ are likely to vary ‘over time and across
4
R Miles and M Brown, Racism (2nd edn, London: Routledge, 2003) 58.
5
C Hirschman, ‘The origins and demise of the concept of race’ (2004) 30 Population and
Development Review 385, 393.
6
ibid 395.
7
A Lentin, Racism and Anti-racism in Europe (London: Pluto Press, 2004) 60.
8
Miles and Brown (n 4 above) 58; Howard (n 3 above) 10.
9
Art 1, Declaration on Race and Racial Prejudice, 20th General Conference of UNESCO,
27 November 1978.
10
R Bhavnani, H Safia Mirza, and V Meetoo, Tackling the Roots of Racism—Lessons for Success
(Bristol: Policy Press, 2005) 9; R Carter, ‘Genes, genomes and genealogies: the return of scientific
racism?’ (2007) 30 Ethnic and Racial Studies 546.
8 ‘Race’, Ethnicity, and Racism in Europe
space’.
11
Historical and geographic circumstances will determine the process through
which racialization occurs; in other words, the way in which physical characteristics
can become imbued with social meaning.
12
In a multinational polity such as the
EU, this implies that perceptions of ‘race’ are likely to differ between states.
The discrediting of ‘race’ can be associated with a shift in vocabulary towards
ethnicity. Whilst scientific theories on ‘race’ attempted to place the human popula-
tion into a small number of biologically determined categories, ethnicity is viewed as
more fragmented and pluralistic.
13
Ethnicity is informed by cultural differences,
such as language, dress, religion, literature, and music. It is often premised on
individuals’ belief in a shared, common origin.
14
Solomos and Schuster argue that
ethnic groups are also social constructions; they are imagined communities based
on selective memory and perceived common heritage.
15
In principle, the cultural
nature of ethnicity suggests that individuals can alter their ethnicity. McVeigh
and Lentin argue that ethnicity is an inherently shifting characteristic which
arises from a combination of internal self-definition and external perception.
16
Consequently, it holds the potential to be a better way of signifying the socially
constructed nature of perceived difference or ‘otherness’, rather than the bio-
logical notion of ‘race’. Nevertheless, there are certain drawbacks to a focus on
ethnicity. Bhavnani et al. suggest that there is a tendency to regard the cultural
qualities represented by ethnicity as static and unchanging.
17
In particular, ethnic
groups risk being viewed as relatively homogeneous entities with little recognition
of their internal diversity.
18
If ethnicity becomes viewed as a fixed trait beyond
individual control, then it may be little more than a ‘politically correct code word
for “race”’.
19
This tendency is reinforced by the habit of viewing only the ‘other’
as bearing ethnic qualities.
20
The label ‘ethnic’ is often used only in conjunction
with minorities and it is associated with that which is exotic and different.
21
B. Scientific, Cultural, and Institutional Racism
Belief in the existence of superior, biologically separate ‘races’ can be summarized
under the label of ‘scientific racism’. Whilst this outlook declined in the post-war
11
K Tyler, ‘The genealogical imagination: the inheritance of interracial identities’ [2005] The
Sociological Review 476, 479.
12
Miles and Brown (n 4 above) 100.
13
S Fenton, Ethnicity (Cambridge: Polity Press, 2003) 52.
14
ibid 62.
15
J Solomos and L Schuster, ‘Citizenship, multiculturalism and the politics of identity: con-
temporary dilemmas and policy agendas’ in R Koopmans and P Statham (eds), Challenging
Immigration and Ethnic Relations Politics (Oxford: OUP, 2000) 74, 79.
16
R McVeigh and R Lentin, ‘Situated racisms: a theoretical introduction’ in R Lentin and
R McVeigh (eds), Racism and Anti-racism in Ireland (Belfast: Beyond the Pale Publications, 2002) 1, 5.
17
Bhavnani et al. (n 10 above) 14.
18
Fenton (n 13 above) 68.
19
Miles and Brown (n 4 above) 93.
20
Lentin (n 7 above) 30.
21
The Runnymede Trust, The Future of Multi-ethnic Britain—The Parekh Report (London:
Profile Books, 2002) xxiii.
Scientific, Cultural, and Institutional Racism 9
period, it was not, however, accompanied by the disappearance of racism as a
phenomenon. For example, issues such as Apartheid or segregation in the USA
propelled the adoption of the International Convention on the Elimination of
Racial Discrimination (ICERD) in 1966.
22
In an effort to explain ongoing
manifestations of racism, attention increasingly focused on ‘cultural racism’.
23
This perspective argues that discrimination and prejudice arise not because of
individuals’ belief in the biological superiority of their perceived ‘race’, but rather
from conflicts between different ethnic groups. A cultural perspective on racism
suggests that individuals have an innate tendency to prefer their own cultural
community and that a mixing of cultures inevitably produces conflicts in inter-
ethnic relations.
24
As overt opposition to persons of a different ‘race’ becomes less
common and widely assumed to be unacceptable discourse, this is replaced with
stealthy ‘race’ talk coded in terms of concern about ‘too much’ cultural diver-
sity.
25
Naturally, this concept of racism implies a strong nexus between racism
and discourse on immigration. For example, McMaster highlights how extreme
right-wing political parties in Europe shifted away from the use of overt language
expressing ideas of racial superiority. Instead, their discourse became couched in
terms of opposition to immigrants and immigration.
26
As a result, racism has
become intertwined with the concept of xenophobia (literally, the fear of for-
eigners). Kundnani notes how hostility to foreigners (and foreign culture) is often
presented as inevitable or natural, thereby invoking xenophobia as an ‘alibi for
racism’.
27
A concept of cultural racism leads to an anti-racist strategy premised on
changing individual attitudes and behaviour. People have to be persuaded to
overcome suspicion and hostility to those of a different culture. On the one hand,
law may be deployed to penalize individual acts of racial discrimination. On the
other, policy is directed towards learning about other cultures and encouraging
people to value diversity.
28
This approach seems evident in the EU’s anti-dis-
crimination media campaign. It centres on slogans such as ‘for diversity, against
discrimination’ or ‘our differences make the difference’.
29
One of the limitations in the culturalist vision of racism is its emphasis on
individual prejudice as a cause of racism.
30
This tends to characterize racism as a
22
International Convention on the Elimination of All Forms of Racial Discrimination
(New York, 7 March 1966); K Boyle and A Baldaccini, ‘A critical evaluation of international human
rights approaches to racism’ in S Fredman (ed), Discrimination and Human Rights—The Case of
Racism (Oxford: OUP, 2001) 135, 150.
23
Lentin (n 7 above) 76.
24
T Modood, ‘“Difference”, cultural racism and anti-racism’ in B Boxill (ed), Race and Racism
(Oxford: OUP, 2001) 238.
25
A Kundnani, ‘In a foreign land: the new popular racism’ (2001) 43 Race & Class 41, 52.
26
N McMaster, Racism in Europe 1870–2000 (Houndmills: Palgrave, 2001) 210.
27
Kundnani (n 25 above) 50.
28
Lentin (n 7 above) 81.
29
<http://www.stop-discrimination.info> accessed 26 April 2007.
30
E Bonilla-Silva, ‘Rethinking racism: towards a structural interpretation’ (1996) 62 American
Sociological Review 465, 467.
10 ‘Race’, Ethnicity, and Racism in Europe
behavioural aberration which should fade away with the passage of time and
individual enlightenment. Critics have argued that this does not pay sufficient
attention to the deep-seated nature of stereotypes which are shaped by public
discourse and are consequently difficult to dislodge.
31
This ranges from the casual
linking in the media of immigration and terrorism, through to workplace
assumptions about who would ‘fit in’. Moreover, the focus on individuals
downplays the role of structural factors which go beyond the actions of any given
individual. McCrudden notes how the persistence of inequality eventually pro-
voked commentators to question whether individual prejudice was a sufficient
explanation for racism.
32
An alternative perspective, ‘institutional racism’, rose in
prominence, dating from the 1960s in both the UK and USA.
The precise meaning of institutional racism has been the subject of consid-
erable academic debate.
33
As a concept, its strength lies in departing from the idea
of racism as purely intentional prejudice on the part of individuals towards those
of a different culture. Instead, it recognizes that racism occurs even in the absence
of conscious discriminatory motivation. To this end, it attributes great import-
ance to whether equal outcomes are ensured in practice for all ethnic groups;
where unequal outcomes persist, this is taken as evidence of institutional
racism.
34
The concept of institutional racism famously entered mainstream
public policy discourse in the UK through the findings of an official inquiry into
the mishandling by police of an investigation into the racist murder of a young
black man, Stephen Lawrence. The inquiry’s report provided the following
definition of institutional racism:
The collective failure of an organisation to provide an appropriate and professional service
to people because of their colour, culture, or ethnic origin. It can be seen or detected in
processes, attitudes and behaviour which amount to discrimination through unwitting
prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority
ethnic people.
35
In this case, institutional racism was detected in the organization’s collective
failure to treat his murder in the manner that would have been adopted for a
white victim. Institutional racism draws attention to the power of ‘routines and
everyday practices’.
36
For instance, when police or immigration officers exercise
discretion and assess how ‘suspect’ an individual is, there is a strong risk of
stereotyping.
31
Bhavnani et al. (n 10 above) 17.
32
C McCrudden, ‘Institutional discrimination’ (1982) 2 OJLS 303, 305.
33
M Verlot, ‘Understanding institutional racism’ in The Evens Foundation (eds), Europe’s New
Racism: Causes, Manifestations and Solutions (Oxford: Berghahn Books, 2002) 27; Miles and Brown
(n 4 above) 66–71.
34
M Rowe, Policing, Race and Racism (Cullompton: Willan Publishing, 2004) 10.
35
para 6.34, W MacPherson, ‘The Stephen Lawrence Inquiry—report of an inquiry’ (Cm 4262-I,
1999).
36
Runnymede Trust (n 21 above) para 5.26.
Scientific, Cultural, and Institutional Racism 11
The idea that racism can arise from taken-for-granted institutional practices
can be applied beyond the sphere of criminal justice. McCrudden notes how
typical labour market practices can institutionalize disadvantage for ethnic
minorities.
37
Recruitment of new workers by relying on ‘word-of-mouth’ or the
family and friends of the current workforce will tend to reproduce the existing
ethnic profile. An alternative example of institutional racism arises from DH v
The Czech Republic.
38
In this case, children were allocated to special schools for
those with learning disabilities on the basis of supposedly neutral psychological
tests. In practice, Roma children in the town of Ostrava were more than 27 times
more likely to be allocated to such schools than a similarly situated non-Roma
child.
39
Crucially, the European Court of Human Rights held that it was not
necessary to show that any individual Roma child had been subject to prejudicial
treatment in the conduct of the tests. The ‘disproportionately prejudicial effect
on the Roma community’ was sufficient evidence to support a finding of
unlawful discrimination.
40
Although the Court does not expressly refer to the
concept of institutional racism in its judgment, this may be viewed as implicit both
in the emphasis attached to the presence of manifestly unequal outcomes and in the
Court’s conclusion that the system of testing was inherently discriminatory.
41
The breadth of the concept of institutional racism has, though, been a source
of criticism. Miles and Brown refer to ‘conceptual inflation’ in the analysis of
racism and the difficulty of determining the limits to racism if it is completely
disconnected from motivation.
42
If the focus is purely on effects and outcomes,
then any difference in the socio-economic position of ethnic groups will be
potentially attributed to racism. Some authors also draw a distinction between
institutional racism, which concentrates on racism arising from the actions and
processes of institutions, and a broader concept of structural racism, which
embraces all socio-economic structures that may give rise to inequality.
43
Given
that this book focuses on the role of the EU (and its institutions), the term
institutional racism will be maintained.
In short, sociological debates on the meaning of racism present a spectrum of
options. The next section turns to consider the role that law plays in defining
racism.
C. ‘Race’, Ethnicity, and Law
When law is deployed to combat racism, certain choices have to be made in the
language used within the law; these convey how the law defines racism. In fact, it
is rather rare to find an express definition of ‘racism’ within legal instruments.
37
McCrudden (n 32 above) 314.
38
DH and others v The Czech Republic [GC] (2008) 47 EHRR 3.
39
para 134.
40
para 209.
41
para 201.
42
Miles and Brown (n 4 above) 71.
43
Bonilla-Silva (n 30 above) 466.
12 ‘Race’, Ethnicity, and Racism in Europe
This may reflect an assumption that racism refers merely to a state of mind, as
opposed to specific acts which could be the subject of legal regulation.
44
Indeed,
legal instruments typically concentrate on defining the concept of discrimin-
ation.
45
ICERD, for example, contains no definition of ‘racism’, but does define
‘racial discrimination’. In relation to the latter, a key question for all anti-racism
laws is what constitutes ‘racial’ discrimination. Here, the use of the term ‘race’ is
an initial dilemma. On one side, the sociological critique of ‘race’ discussed above
has exposed the artificiality of ‘race’ as a means of categorizing the human
population. Given the consensus that there is no scientific basis for the existence
of ‘race’, one aim of anti-racism laws should be to undermine this perceived
category. Haney López warns that using ‘race’ as a category within the law tends
to legitimize its existence in the popular imagination.
46
For example, ICERD
refers to ‘promoting understanding among all races’
47
or the ‘protection of certain
racial groups’.
48
In the European context, the historical resonance of ‘race’
underscores its problematic nature.
49
In some states, it is strongly associated with
laws promulgated by the Nazi and Fascist governments in Europe during the
1930s and 1940s. Indeed, in 1996, the European Parliament adopted a reso-
lution stating that ‘the term should therefore be avoided in all official texts’.
50
On the other side of this debate, it can be argued that anti-racism laws are
designed to prohibit discrimination based on perceptions about ‘race’, therefore,
legal texts need to engage expressly with this concept. In other words, it needs to
be clear that if someone treats another less favourably and this is based on their
belief about that other’s ‘race’, then this act must be forbidden by law. This
rationale is adopted in the general policy recommendation of the European
Commission against Racism and Intolerance (ECRI), the Council of Europe’s
specialized body working on racism and related issues. The explanatory memo-
randum states:
Since all human beings belong to the same species, ECRI rejects theories based on the
existence of different «races». However, in this Recommendation ECRI uses this term in
order to ensure that those persons who are generally and erroneously perceived as belonging
to «another race» are not excluded from the protection provided for by the legislation.
51
44
E Howard, ‘The road to equality—developing the protection against discrimination on racial
or ethnic grounds within the European Union’ Ph.D. thesis, Queen Mary, University of London,
February 2007.
45
Howard (n 3 above) 27.
46
I Haney López, White by Law—The Legal Construction of Race (New York: New York
University Press, 1996) 111.
47
Art 2(1).
48
Art 2(2). The preamble of ICERD states that ‘any doctrine of superiority based on racial
differentiation is scientifically false’.
49
Howard (n 3 above) 12.
50
para K, Resolution on the communication from the Commission on racism, xenophobia and
anti-Semitism [1996] OJ C152/57.
51
fn 1, ECRI general policy recommendation no 7 on national legislation to combat racism and
racial discrimination, CRI (2002) 41, 13 December 2002.
‘Race’, Ethnicity, and Law 13
This balance also seems to be the logic within the EC Racial Equality Directive,
given the statement in Recital 6, mentioned at the outset of this chapter. An
alternative approach in some states has been to qualify the term ‘race’ within
national legislation. For instance, in France, ‘race’ is often prefaced by the words
‘real or assumed’.
52
These strategies fit comfortably with the prohibition of direct
discrimination or harassment, where the actual characteristics of the victim are
not determinative of the existence of the unlawful act. Article 2(1) of the Racial
Equality Directive defines direct discrimination as ‘where one person is treated
less favourably than another is, has been or would be treated in a comparable
situation on grounds of racial or ethnic origin’ (emphasis added).
53
The law can
claim to reject the existence of ‘race’, yet penalize situations where someone is
treated less favourably on this ground. The key is the reason for the discrimin-
ator’s action, not the actual characteristics of the victim. Greater difficulties arise
in respect of indirect discrimination. Article 2(2)(b) of the Racial Equality Dir-
ective states:
Indirect discrimination shall be taken to occur where an apparently neutral provision,
criterion or practice would put persons of a racial or ethnic origin at a particular
disadvantage compared with other persons, unless that provision, criterion or practice is
objectively justified by a legitimate aim and the means of achieving that aim are
appropriate and necessary (emphasis added).
The nature of indirect discrimination is that the rule or practice does not overtly
distinguish on grounds of perceived ‘race’. Instead, the complainant is seeking to
demonstrate that a group of people of a particular racial origin compared with
persons not of that racial origin are placed at a particular disadvantage. It is very
difficult to mount such a complaint without implicitly accepting the existence of
groups that can be defined according to racial origin. Banton observes that ‘the
introduction of the concept of racial group was in Britain seen as the price to be
paid for the prohibition of indirect discrimination’.
54
He criticizes this trade-off,
arguing that in the long term the continued use of such terminology ‘breathes
new life into the obsolete idea of race’.
55
Given the contested nature of ‘race’, it is not surprising many legal instruments
against racism have sought to identify alternative conceptual categories. This also
reflects the shift from a focus on scientific racism towards cultural racism. If
cultural difference is viewed as the catalyst for contemporary manifestations of
racism, then it is necessary to capture the various markers through which
cultural difference is signified. This is already evident in ICERD, which
defines racial discrimination as ‘any distinction, exclusion, restriction or
52
eg Art L. 1132-1 Labour Code.
53
Admittedly, not all language versions of the Directive adopt this expression: eg the Italian
version refers to less favourable treatment ‘because of his race’ (‘a causa della sua razza’).
54
M Banton, The International Politics of Race (Cambridge: Polity Press, 2002) 201.
55
ibid.
14 ‘Race’, Ethnicity, and Racism in Europe
preference based on race, colour, descent, or national or ethnic origin’.
56
More
than 35 years later, ECRI’s general policy recommendation advocated a longer,
open-ended list: ‘«direct racial discrimination» shall mean any differential treat-
ment based on a ground such as race, colour, language, religion, nationality or
national or ethnic origin’ (emphasis added).
57
The advantage of the open list
approach is that it recognizes the dynamic quality of racism. It is not a stable
phenomenon, but rather one which varies in its manifestation according to
context.
58
Specifically, the groups vulnerable to racism are likely to vary due
to factors such as the process of state formation or the history of migration. Two
contemporary examples are asylum-seekers and Muslims. Asylum as an avenue
for migration grew sharply in political sensitivity during the 1980s and 1990s and
consequently asylum applicants became a key group vulnerable to racism.
59
Similarly, the period since the 1990s has witnessed an increasing political focus
on the situation of Muslims in Europe, a debate accentuated post-9/11. Modood
argues that hostility to Muslims, often summarized in the term Islamophobia, is a
present-day expression of racism.
60
The difficulty encountered in defining racism in law is striking the balance
between recognition of its changing form with identification of its outer limits.
At one end of the spectrum, it is possible to point to discrimination on grounds
such as age, gender, or sexual orientation. Although these can be combined with
racism, it is rarely argued that discrimination on these grounds is an aspect of
racism. In contrast, there are grounds such as religion or nationality where there
is considerable variation between legal sources as to whether these should be
placed under the umbrella of racism. In contrast to ICERD or ECRI’s recom-
mendation, the Racial Equality Directive adopts the relatively narrow formula of
discrimination on grounds of ‘racial or ethnic origin’. Moreover, it specifies that
this does not cover a difference of treatment based on nationality,
61
whilst dis-
crimination on grounds of religion or belief is regulated in a separate Directive.
62
As discussed above, the concept of racial origin is inherently problematic, so this
seems a limited vehicle for capturing the meaning of racism. Instead, ethnic
origin is likely to be the centre of judicial scrutiny in interpreting the scope of the
EC Directive.
The category of ethnic origin sits comfortably with a strategy designed to
combat cultural racism. Ethnicity captures a range of cultural variables that leads
to internal or external perception of difference. This view has been affirmed by
56
Art 1(1).
57
para I(1)(b), ECRI (n 51 above).
58
Bonilla-Silva (n 30 above) 475.
59
C Lynch, ‘Racism in Europe—ENAR Shadow Report 2005’ (Brussels: European Network
Against Racism, 2006) 7.
60
Modood (n 24 above) 247.
61
Art 3(2).
62
Council Directive (EC) 2000/78 establishing a general framework for equal treatment in
employment and occupation [2000] OJ L303/16. This Directive prohibits discrimination on
grounds of religion or belief, disability, age, and sexual orientation, but only in respect of
employment and vocational training.
‘Race’, Ethnicity, and Law 15
the European Court of Human Rights. In Timishev v Russia, the Court con-
sidered alleged discrimination by Russian security services against persons of
Chechen ethnicity. It took the opportunity to offer the following definition:
Ethnicity and race are related and overlapping concepts. Whereas the notion of race is
rooted in the idea of biological classification of human beings into subspecies according to
morphological features such as skin colour or facial characteristics, ethnicity has its origin
in the idea of societal groups marked by common nationality, tribal affiliation, religious
faith, shared language, or cultural and traditional origins and backgrounds.
63
Interestingly, this definition explicitly acknowledges the interaction of nationality
and religion in the construction of ethnicity. Pinning down the limits to ethnicity
has troubled courts and law-makers in various Member States. In the UK, Sikhs
64
and Jews
65
have been accepted as ethnic groups, whereas Rastafarians
66
have not.
In the Netherlands, case law from the Equal Treatment Commission has rec-
ognized that discrimination related to ethnic origin can cover Jews
67
and, in
certain circumstances, Rastafarians and Muslims.
68
The importance of identifying the groups protected by anti-racism laws is
perhaps most significant with a view to combating institutional racism. This
shifts the focus away from sanctioning individual unlawful acts (although this
is still required), towards tackling patterns of inequality. This implies an iden-
tification of those groups which currently experience unequal outcomes and in
respect of which interventions to redress inequalities are needed. Within EU
official documents, the term ‘ethnic minorities’ is often adopted as a catch-all
label for those groups in society which experience inequality arising from racism.
For example, beginning in 1999, the EU Employment Guidelines have identified
‘ethnic minorities’ within the category of groups vulnerable to disadvantage in
the labour market.
69
Yet, the scope of this expression is not always clear. A 1996
comparative study of anti-racism policies for the European Foundation for the
Improvement of Working and Living Conditions found a great variation in the
terms used to refer to those vulnerable to racism (ethnic minorities, immigrants,
foreigners) which overlapped with differences between national policy approaches
to racism.
70
63
para 55, Timishev v Russia (2007) 44 EHRR 37.
64
Mandla v Dowell Lee [1983] 2 AC 548, HL.
65
Seide v Gillette Industries Ltd [1980] IRLR 427, EAT.
66
Dawkins v Department of the Environment [1993] IRLR 284, CA.
67
Opinion 1998/48, Equal Treatment Commission.
68
Opinion 1998/57, Equal Treatment Commission. See further, M Gijzen, Selected Issues in
Equal Treatment Law: A Multi-layered Comparison of European, English and Dutch Law (Antwerp:
Intersentia, 2006) 317.
69
Guideline 9, Council Resolution on the 1999 Employment Guidelines [1999] OJ C69/2. See
further Ch 5.
70
J Wrench, Preventing racism at the workplace—a report on 16 European countries (Lux-
embourg: OOPEC, 1996) 7–10.
16 ‘Race’, Ethnicity, and Racism in Europe
D. Groups Vulnerable to Racism
Compiling a list of groups vulnerable to racism in Europe is a potentially vast task
and it could quickly become a rather arid discussion. This section does not,
therefore, aim to provide an exhaustive taxonomy, but instead to identify some
key differences between the categories of persons vulnerable to racism. These
differences will have implications for determining the appropriate legal and policy
responses. All European states contain some elements of ethnic diversity, yet the
source and nature of this diversity vary greatly. Kymlicka proposes a basic dis-
tinction between historic national minorities and migrant communities (he calls
the latter ‘ethnic groups’).
71
Whilst both are vulnerable to discrimination on
grounds of their ethnicity, there are important differences in the context in which
this occurs and the way in which it is manifested.
Kymlicka defines national minorities as ‘groups that formed complete and
functioning societies on their historic homeland prior to being incorporated into
a larger state’.
72
These can be further distinguished between national minorities
with an ethnic ‘kin’ state
73
(such as Polish minorities in Lithuania, Danish
minorities in Germany, or Hungarian minorities in Romania) and those groups
almost wholly contained within a broader state, such as Sami in Finland or
Catalans in Spain. This handful of examples illustrates that national minorities
can be found in both western and eastern Europe. Nevertheless, the sensitivity of
the European Union to the situation of national minorities can be linked to the
2004 and 2007 enlargements.
74
In some central and eastern European states,
national minorities constitute a very significant proportion of the population.
75
Migrant communities can also be found across the EU Member States. In
2007, the Commission estimated that there were 18.5 million third country
nationals resident in the EU.
76
The relative size of this population group varies
considerably across the Member States, ranging from 0.1% of the population of
Slovakia and Poland to 8.4% in Estonia and Spain (see Table 1.1). There are also
significant differences in the extent to which these minorities have become
established components of the domestic society. In some states, such as the UK
and France, post-war immigrant communities have been present for several
71
W Kymlicka, Multicultural Citizenship (Oxford: OUP, 1995) 10.
72
W Kymlicka, ‘Western political theory and ethnic relations in Eastern Europe’ in W Kymlicka
and M Opalski (eds), Can Liberal Pluralism be Exported? Western Political Theory and Ethnic
Relations in Eastern Europe (Oxford: OUP, 2001) 13, 23.
73
ibid 64.
74
G Sasse, ‘EU Conditionality and Minority Rights: Translating the Copenhagen Criterion into
Policy’ EUI Working Papers, RSCAS No 2005/16 (Florence: European University Institute, 2005);
B de Witte, ‘Politics versus law in the EU’s approach to ethnic minorities’ RSC No 2000/4, EUI
Working Papers (Florence: European University Institute, 2000).
75
eg in Slovakia, the Hungarian minority forms around 10% of the population: Commis-
sion, ‘Equality, diversity and enlargement’ (Luxembourg: OOPEC, 2003) 104.
76
Commission, ‘Third annual report on migration and integration’ COM (2007) 512, 3.
Groups Vulnerable to Racism 17
generations and in many cases have acquired nationality of the host state. For
example, 11.5% of the working age population in Sweden are ‘foreign-born’
Swedish nationals (see Table 1.1). As immigration is a dynamic phenomenon,
new communities are steadily being created, whilst old communities may be
altered by fresh sources of migration. In this light, it is important to recognize
diversity within migrant groups. The situation of a second generation Pakistani
woman holding British nationality may be very different from that of a Pakistani
man recently arrived on a temporary work permit. Finding an appropriate
Table 1.1 Proportion of working age non-EU nationals and foreign-
born nationals relative to total working age population, 2005
Member State Non-EU nationals Foreign-born
nationals
Austria 7.1 5.9
Belgium 2.8 6.2
Cyprus 7.4 3.6
Czech Republic 0.4 1.2
Denmark 2.5 2.5
Estonia 8.4 4.6
Finland 0.9 1.3
France 3.6 6.3
Hungary 0.5 1.2
Germany 5.4 7.9
Greece 5.3 2.1
Ireland 2.7 4
Italy 4.1
a
n/a
Latvia (0.4) 10.9
Lithuania (0.4) 3
Luxembourg 3.2 3.5
Malta 1.7 2.3
Netherlands 2.6 9
Poland 0.1 0.5
Portugal 2.6 4.1
Spain 8.4 n/a
Slovakia (0.1) 0.7
Slovenia (0.4) 7.7
Sweden 3.1 11.5
UK 4 4.8
EU10 0.5 1.5
EU15 4 4.6
EU25 3.4 4.1
a
Data for Italy concern the entire population and are taken from ISTAT, ‘La presenza
straniera in Italia: caratteristiche socio-demografiche’ (Rome: ISTAT, 2007) 35.
Notes: Data in brackets indicate lack of reliability due to small sample size. Data were not
available for Bulgaria and Romania.
Adapted from: Commission, ‘Employment in Europe 2006’ (Luxembourg: OOPEC,
2006) 214.
18 ‘Race’, Ethnicity, and Racism in Europe
all-encompassing term to refer to such groups is difficult in a multilingual
European context.
77
Whilst ‘foreigners’, ‘immigrants’, or ‘migrants’ may be
common terms in many European countries, these labels can be regarded as
inappropriate for those descendants of migrants who are now EU citizens and
may have lived their entire lives within the EU. At the other end of the spectrum,
in the UK, the nuanced term ‘black and minority ethnic’ is frequently used. Yet
this has less resonance in a European context.
78
Whilst recognizing its limita-
tions, this book will generally use the term ‘ethnic minority’ to encompass both
migrants and descendants of migrants.
79
Not all groups vulnerable to ethnic discrimination fit neatly within the two
categories discussed above. Notably, Roma communities, who have been
described as Europe’s largest ethnic minority,
80
appear to straddle both cat-
egories.
81
Historically, the Roma are traced back to migration from the Indian
sub-continent in a period between the eleventh and fifteenth centuries.
82
Some
present-day Roma communities are nomadic, but equally many are now settled
communities. Within individual states, there is often diversity within the Roma
population; in Italy, for example, there are both established communities of long
historical standing, and Roma migrants coming from the Balkans since the
1990s.
83
The size of the Roma population varies considerably across the Member
States, although the exact figures are often a matter of debate (see Table 1.2).
There is some inconsistency between EU states on whether Roma constitute a
national minority and, accordingly, are entitled to benefit from the specific legal
protections accorded to such groups. Traditionally, many eastern European states
denied Roma access to national minority status, placing them in the less privil-
eged legal category of ‘ethnic minority’.
84
The relevance of this debate to anti-
racism policies lies in the strategies adopted to combat inequality. In some
77
S Allen and M Macey, ‘Race and ethnicity in the European context’ (1990) 41 British Journal
of Sociology 375.
78
C Neveu, ‘Is “black” an exportable category to mainland Europe? Race and citizenship in a
European context’ in J Rex and B Drury (eds), Ethnic Mobilization in a Multi-cultural Europe
(Aldershot: Averbury, 1994) 97.
79
As discussed below in relation to the Roma, some ‘historic’ national minorities were also
originally migrants and the two categories are not always clear-cut. Migrant generally refers here to
migration since the Second World War.
80
Commission, ‘Equality and non-discrimination in an enlarged European Union’ COM (2004)
379, 20.
81
P Barsa, ‘Ethnocultural justice in East European states and the case of Czech Roma’ in
W Kymlicka and M Opalski (eds), Can Liberal Pluralism be Exported? Western Political Theory and
Ethnic Relations in Eastern Europe (Oxford: OUP, 2001) 243, 254.
82
Commission, ‘The situation of Roma in an enlarged European Union’ (Luxembourg:
OOPEC, 2004) 7. See further, A Bancroft, Roma and Gypsy-Travellers in Europe—Modernity, Race,
Space and Exclusion (Aldershot: Ashgate, 2005).
83
N Sigona, ‘Locating “the Gypsy problem”. The Roma in Italy: stereotyping, labelling and
“nomad camps”’ (2005) 31 Journal of Ethnic and Migration Studies 741, 744.
84
R Guglielmo and T W Walters, ‘Migrating towards minority status: shifting European policy
towards Roma’ (2005) 43 JCMS 763, 765. It should be noted that ‘ethnic minority’ in this context
does not extend to contemporary immigration.
Groups Vulnerable to Racism 19
instances, measures normally associated with national minorities have been
extended to Roma. For example, in Slovenia, Roma representatives have been
guaranteed seats within certain local municipalities, even though they are not
officially classified as a national minority.
85
There are also examples of positive
action schemes which might be more typically associated with ethnic minorities.
Notably, the European Commission has an internship programme reserved to
Roma.
86
The combination of such initiatives suggests a sui generis status for the
Table 1.2 National estimates of the Roma population
Member State Roma population
Austria 15–20,000
Belgium 10–15,000
Bulgaria 371,356
Cyprus 700
Czech Republic 32,903–200,000
a
Denmark 2,000–4,500
Finland 5–8,000
France 250–300,000
Germany 85–120,000
Greece 250–300,000
Hungary 570,000 (higher and lower estimates also exist)
Ireland 20–27,000
Italy 85–120,000
Lithuania 2,571
Luxembourg 200–500
Netherlands 30–40,000
Poland 12,900–20,000
a
Portugal 40,000
Romania 1,400,000–2,500,000 (lower estimates also
exist)
Slovakia 90,000–350,000
a
Slovenia 3,246–10,000
a
Spain 90–100,000 (some estimates are up to 600,000)
Sweden 15–20,000
UK 200–300,000
a
The lower figure is taken from the national census, but the real figure is believed to be
much higher.
Note: No data were available for Estonia, Latvia, or Malta. The data derive from a variety
of sources and from different periods since the mid-1990s.
Reproduced with permission from: European Commission, Directorate-General for
Employment, Social Affairs and Equal Opportunities, ‘Gender inequalities in the risks
of poverty and social exclusion for disadvantaged groups in thirty European countries’
(Luxembourg: OOPEC, 2006) 101–102.
85
M Tratar and M Hot, ‘Report on measures to combat discrimination: Slovenia’ (Brussels:
European Commission, 2007) 50.
86
<http://ec.europa.eu/employment_social/fundamental_rights/roma/rtrain_en.htm> accessed
16 June 2008.
20 ‘Race’, Ethnicity, and Racism in Europe
Roma. Indeed, both the Parliamentary Assembly of the Council of Europe
87
and
the European Parliament
88
have proposed recognizing the Roma as a ‘European
minority’, whilst the European Court of Human Rights has described the Roma
as ‘a specific type of disadvantaged and vulnerable minority’.
89
Jewish communities are another example of a group which does not easily fit
within the dichotomy between national and ethnic minorities. Jewish commu-
nities have a long historical tradition within Europe, but their territorial location
was shattered by the Holocaust. It is evident that the manifestation of racism in
respect of Jewish people is quite distinct from, for example, its form in respect of
the Roma. Anti-Semitism is characterized by negative stereotyping of Jewish
people, including linking Jews to conspiracy theories about the exercise of
power.
90
It remains intertwined with Holocaust denial or trivialization.
91
Moreover, the intensity of anti-Semitic acts appears to be partially related to the
prevailing political situation within the Middle East.
92
This section has focused on the diversity hidden behind broad terms such as
‘ethnic minority’. Groups vulnerable to discrimination because of their ethnic
origins differ in their characteristics and this needs to be taken into account when
designing anti-racism law and policy. Whilst the principal distinction may be
between national minorities and ethnic minorities, not all groups are easily placed
within these categories. Aside from Jewish people and the Roma, it is also
possible to point to other groups that do not fit within this typology, such as
Russian minorities in the Baltic states.
93
This diversity leads some commentators
to refer to ‘racisms’, rather than a monolithic notion of a single racism.
94
This
pluralistic approach opens the door to recognizing also the interaction of race
with other variables, such as gender or disability. This is considered further in the
next section.
E. Intersectionality and Racism
One of the criticisms of terms such as ‘ethnic group’ is that they suggest a
uniformity of experience, with all members assumed to share similar character-
istics. Yet an individual’s ethnic origin will be combined with their other per-
sonal characteristics such as gender, age, physical/mental abilities, and sexual
orientation. It is almost trite to say that a black woman can face both racial and
sexual discrimination, an idea frequently summarized in the umbrella term
87
para 2, Recommendation 1203 (1993) on Gypsies in Europe, 44th Ordinary Session.
88
para 2, Resolution on the situation of Roma in the European Union [2006] OJ C45E/129.
89
para 182, DH and others v The Czech Republic [GC] (2008) 47 EHRR 3.
90
McMaster (n 26 above) 212–16.
91
European Union Monitoring Centre on Racism and Xenophobia (EUMC), ‘Antisemitism:
summary overview of the situation in the European Union 2001–2005’ (Vienna: EUMC, 2006) 19.
92
ibid.
93
Kymlicka (n 72 above) 76–9.
94
eg S Fredman, ‘Equality: a new generation?’ (2001) 30 ILJ 145, 148.
Intersectionality and Racism 21
‘multiple discrimination’. This can be broken down into several strands. To the
extent that different forms of discrimination operate concurrently, then this may
be described as ‘additive discrimination’.
95
For example, if there are barriers to
promotion for both women and ethnic minorities, then a black woman faces a
dual set of barriers. This is the addition of ethnicity plus gender. Whilst this
notion is relatively straightforward, the more complex concept is that of ‘inter-
sectional discrimination’.
96
This suggests that the combination of different forms
of inequality results in a distinct experience.
97
Therefore, the situation of a black
woman is not akin to the sum of a white woman and a black man. This can be
attributed to a number of factors. Intersectionality may give rise to specific
stereotypes, such as the assumption that women wearing a headscarf will lack self-
confidence or that young Muslim men pose a security risk.
98
Alternatively, in-
tersectionality can expose tensions within minority communities.
99
For instance,
lesbian, gay, and bisexual (LGB) persons from minority communities can find
themselves distant both from LGB communities and from their own ethnic
community.
100
An empirical study of South Asian disabled women in the UK
emphasized the barriers to independence for such women.
101
Physical barriers
sometimes made it difficult to participate in collective religious events in the
community, whilst there were considerable social barriers for a disabled woman
to marry within the community and this heightened dependence on parental
support.
Whether characterized as additive or intersectional, there is a growing body of
evidence which indicates heightened levels of disadvantage for those vulnerable to
multiple discrimination. Considerable research on the interaction of gender and
ethnicity was undertaken by the former British Equal Opportunities Commission
(EOC). This revealed, inter alia, higher unemployment rates, lower pay rates,
and increased occupational segregation for women from ethnic minority
communities.
102
Very substantial differences existed between the situations of
95
S Hannett, ‘Equality at the intersections: the legislative and judicial failure to tackle multiple
discrimination’ (2003) 23 OJLS 65, 68; A McColgan, ‘Reconfiguring discrimination law’ [2007] PL
74, 83.
96
ibid.
97
K Crenshaw, ‘Demarginalizing the intersection of race and sex: a black feminist critique of
antidiscrimination doctrine, feminist theory, and antiracist politics’ in A Phillips (ed), Feminism and
Politics (Oxford: OUP, 1998) 314, 315.
98
Commission, ‘Tackling multiple discrimination—practices, policies and laws’ (Luxembourg:
OOPEC, 2007) 17.
99
S Fredman, ‘Double trouble: cumulative discrimination and EU law’ (2005) 2 European Anti-
Discrimination Law Review 13.
100
F Colgan, C Creegan, A McKearney, and T Wright, ‘Lesbian, gay and bisexual workers:
equality, diversity and inclusion in the workplace’ (London: Comparative Organisation and Equality
Research Centre, London Metropolitan University, 2006) para 4.9.
101
Y Hussain, ‘South Asian disabled women: negotiating identities’ [2005] The Sociological
Review 522.
102
L Buckner, S Yeandle, and S Botcherby, ‘Ethnic minority women and local labour markets’
(Manchester: EOC, 2007).
22 ‘Race’, Ethnicity, and Racism in Europe
women from different ethnic communities; whilst Black Caribbean women in
England had an economic activity rate of 73%, this figure was just 27% for
Bangladeshi women.
103
Although gender and ethnicity might be the best documented illustration of
intersectionality, other ground combinations can be linked to disadvantage. The
British HIV/AIDS charity, Crusaid, reported that 60% of applicants to its
hardship fund were of African ethnic origin and 54% were ‘at some stage in the
asylum or immigration process’.
104
A 2001 study in the UK reported that Black
Africans were twice as likely as white people to fear discrimination because of
their HIV status.
105
Alternatively, recent research in the UK revealed differences
in the treatment of children with autism according to ethnicity.
106
Taking intersectionality into account has a number of implications for anti-
racism law and policy. First, there are some grounds which are very difficult to
disentangle from ‘race’ and ethnicity. Differences in treatment due to nationality,
religion, and language are often interlinked with discrimination on grounds of
ethnic origin. In many instances, direct discrimination on these grounds will
constitute indirect discrimination on grounds of ethnic origin. Given the prox-
imity between grounds such as nationality, religion, language, and ethnicity,
there is a strong argument in favour of a comprehensive response in law and
policy.
Other grounds are less intimately bound up with ‘race’ or ethnicity, but may
give rise to multiple discrimination. Difficulties are likely to arise where the basic
scope of anti-discrimination law varies. Currently, EC legislation prohibits dis-
crimination in education on grounds of racial or ethnic origin,
107
but not on
grounds of gender.
108
This leaves an obvious gap where multiple discrimination
cannot be addressed. In contrast, EC employment discrimination legislation does
cover a range of grounds: gender, racial or ethnic origin, religion or belief,
disability, age, and sexual orientation. Notwithstanding the disparities between
the various Directives applying to these forms of discrimination, this provides a
first step in enabling multiple discrimination to be tackled. Therefore, an Asian
gay man harassed on grounds of ethnic origin and sexual orientation can bring a
case citing both aspects of his harassment. Yet, the fragmented legislative frame-
work does not facilitate an integrated analysis of such complaints. Roseberry cites
103
ibid 20.
104
Crusaid and National AIDS Trust (NAT), ‘Poverty and HIV—findings from the Crusaid
Hardship Fund 2006’ (London: Crusaid/NAT, 2006) 6–7.
105
Terence Higgins Trust (THT), ‘Prejudice, discrimination and HIV’ (London: THT, 2001)
para 4.5.
106
C Corbett and P Perepa, ‘Missing out? Autism, education and ethnicity: the reality for
families today’ (London: The National Austistic Society, 2007).
107
Dir 2000/43, Art 3(1)(g).
108
Art 3(3), Council Directive (EC) 2004/113 implementing the principle of equal treatment
between men and women in the access to and supply of goods and services [2004] OJ L373/37.
Intersectionality and Racism 23
the experience in the United States where multi-ground discrimination claims are
in practice often broken into separate components by the courts.
109
Responding to the nuances of intersectionality also poses challenges for policy
frameworks. The history of EU initiatives on equality has been characterized by a
strong distinction between gender equality on the one hand, and other forms of
discrimination on the other. Whilst this dichotomy has shifted in recent years,
there is a risk that rigid policy boundaries hinder recognition of intersectionality.
This also permeates into participation and consultation processes. An intersec-
tional perspective will query whether NGOs representing ‘women’ or ‘ethnic
minorities’ will adequately convey the perspective of minority women. Given the
risk that intersectional minorities remain isolated, their voices may be difficult to
reach.
F. Conclusions
The aim of this book is to assess the extent to which the objectives of combating
racism and promoting equality have been mainstreamed across EU law and
policy. A first step to answering that question is to deconstruct what is meant by
racism, particularly in the geographic context of the EU. This chapter has
illustrated that no single definition of racism can be provided; instead, it is
essential to recognize the multiple forms that racism takes, varying across time
and place. Specifically, racism extends beyond the notorious belief in the bio-
logical superiority of certain ‘races’ (scientific racism). Contemporary forms of
racism encompass prejudice based on cultural difference (cultural racism), but
also ethnic inequalities arising from organizational culture and practice (insti-
tutional racism). Like most legal systems, EC legislation has not attempted to
provide a specific definition of racism; however, it has prohibited discrimination
on grounds of ‘racial or ethnic origin’. This chapter found that the concept of
racial origin is inherently problematic, being grounded in the scientifically false
notion that human beings can be separated into biologically distinct ‘races’.
Whilst the inclusion of terms such as ‘race’ or ‘racial origin’ in legislation may be
necessary to ensure that protection is comprehensive, they will be generally
avoided in this book. In the diverse geographic context of Europe, ethnicity and
ethnic origin are arguably more resonant and are less encumbered by the ideo-
logical baggage associated with ‘race’.
In the enlarged EU, discrimination on the grounds of ethnic origin potentially
affects two broad categories. The term ‘ethnic minorities’ has been adopted to
refer to migrants and their descendants, whilst the term ‘national minorities’ is
109
L Roseberry, The Limits of Employment Discrimination Law in the United States and
European Community (Copenhagen: DJØF Publishing, 1999) 337. See also, G Moon, ‘Multiple
discrimination—problems compounded or solutions found?’ (London: Justice, 2007) 6.
24 ‘Race’, Ethnicity, and Racism in Europe
used to refer to Europe’s historic minorities. These categories are not hermetically
sealed and it is necessary to be cognizant of groups such as Jewish and Roma
Communities who are vulnerable to ethnic discrimination, but who do not fit
neatly within the above dichotomy. The understanding of what constitutes an
ethnic group is geographically contextual, with the European Court of Human
Rights pointing to cultural markers, such as nationality, religion, and language.
110
This indicates the blurred boundary between ethnic discrimination and dis-
crimination on grounds of such characteristics. Therefore, measures to combat
racism need to take account of discrimination on related grounds, such as religion
or nationality. Rather than delving into a long and arid debate about the extent to
which Islamophobia is or is not racism, it seems more productive to proceed from
an acknowledgement that an effective strategy for combating racism needs to
address related forms of religious discrimination.
The above observations on the concept of racism and the groups most vul-
nerable in Europe to ethnic discrimination provide a framework against which
subsequent chapters can analyze EU law and policy in this field. Nevertheless,
combating racism is just one element of the objectives normally pursued by
mainstreaming. The flip side of combating racism is the positive goal of achieving
equality. This is particularly true in the light of the concept of institutional
racism, which places the spotlight on whether equal outcomes are being ensured
for ethnic minority groups. Therefore, Chapter 2 examines what is meant by
equality, especially when placed in the context of combating racism.
110
para 55, Timishev v Russia (2007) 44 EHRR 37.
Conclusions 25